Wilson v. Ancestry.com

• Decision Date: 31 January 2023
• Docket Number: 2:22-cv-861
• Parties: JOHN WILSON, on behalf of himself and all others similarly situated, Plaintiff, v. ANCESTRY.COM LLC, et al., Defendant.
• Court: U.S. District Court — Southern District of Ohio

JOHN WILSON, on behalf of himself and all others similarly situated, Plaintiff,
v.
ANCESTRY.COM LLC, et al., Defendant.

No. 2:22-cv-861

United States District Court, S.D. Ohio, Eastern Division

January 31, 2023

Kimberly A. Jolson, Magistrate Judge.

OPINION AND ORDER

EDMUND A. SARGUS, JR. UNITED STATES DISTRICT JUDGE.

This matter is before the Court on Defendants Ancestry.com Operations Inc., Ancestry.com Inc., and Ancestry.com LLC's (collectively, “Ancestry”) Motion to Dismiss Class Action Complaint (ECF No. 13), Plaintiff John Wilson's Opposition to Ancestry's Motion to Dismiss (ECF No. 29), and Ancestry's Reply (ECF No. 33). For the reasons set forth below, the Court DENIES Ancestry's Motion to Dismiss. (ECF No. 13.)

I. BACKGROUND

On February 21, 2022, Plaintiff John Wilson, on behalf of himself and all others similarly situated, filed this putative class action alleging that Ancestry, which owns www.ancestry.com, used Wilson and the proposed class members' names and personas to promote paid subscriptions to the Ancestry website without their consent. (Compl. ¶ 1, ECF No. 1.) According to the Complaint, a paid subscription to Ancestry.com provides subscribers with access to a wide range of services, such as access to Wilson and the putative class members' yearbook photos, personal information, and more than 18 billion records worldwide, as well as multiple tools that allow users to “[g]row a family tree.” (Id. at ¶ 10.)

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Wilson identifies three advertising techniques in which Ancestry, without Wilson's consent, uses his persona to encourage viewers to subscribe to Ancestry's services. First, via Ancestry's publicly accessible landing page, any visitor may search for any person by name and location. (Compl. ¶ 6, ECF No. 1.) Upon returning a search for Wilson or any proposed class member, Ancestry retrieves a list of corresponding yearbook photographs accompanied by promotional text urging the visitor to “Sign Up Now” for a subscription. (Id.) The promotional text further encourages purchase of a subscription by promising that “There's more to see” about the searched individual, including higher-resolution photographs and additional personal information, such as the individual's city of residence, estimated age, and high school graduation year. (Id.)

As for the second advertising technique, Ancestry sends promotional emails and onsite messages to users who have not yet subscribed and who may be related to Wilson or a proposed class member. (Id. at ¶¶ 7, 38.) Wilson alleges that these emails and messages use his and the proposed class members' names and identities, referencing one promotional email with the subject line “What should you explore next for [proposed class member]?” (Id.) The body of the email provides a link, and if the recipient follows the link, he or she is taken to a webpage asking him or her to subscribe to Ancestry.com. (Id.)

In the third advertising technique, Ancestry allows users to enroll in a two-week free trial membership during which users have full access to Ancestry's services. (Id. at ¶ 8.) These users may search for, view, print, and share Wilson and other proposed class members' personal information. (Id.) As alleged, Ancestry's “sole purpose” in granting free-trial users access to Wilson and the proposed class members' personal information is to solicit the purchase of paid memberships. (Id.)

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Wilson is a resident of Morgan County, Ohio. (Id. at ¶ 26.) He is not a subscriber to any of Ancestry's products or services, nor has he ever visited Ancestry.com. (Id. at ¶ 27.) Ancestry uses at least two photographs depicting Wilson to advertise subscriptions to Ancestry.com. (Id. at ¶ 32.) In all three advertising techniques detailed above, Ancestry uses Wilson's name and photograph. (Id. at ¶¶ 33-39.) Wilson did not give consent to Ancestry to use his name, photograph, likeness, or persona in any way. (Id. at ¶ 30.)

Wilson brings this putative class action against Ancestry alleging (1) misappropriation of his and the putative class members' personas in violation of Ohio's right of publicity statute, Ohio Rev. Code § 2741, and (2) invasion of privacy by means of appropriation under Ohio common law.^[1](Id. at ¶¶ 55-66.)

II. LEGAL STANDARD

A. 12(b)(2)

Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss for lack of personal jurisdiction. “The party seeking to assert personal jurisdiction bears the burden of demonstrating that such jurisdiction exists.” Schneider v. Hardesty, 669 F.3d 693, 697 (6th Cir. 2012) (quoting Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002)) When a court considers a motion to dismiss pursuant to Rule 12(b)(2) without an evidentiary hearing, as the Court does here, it must consider the pleadings and affidavits in the light most favorable to the plaintiff. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996). In such an instance, the

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plaintiff “need only make a prima facie showing of jurisdiction.” Bird, 289 F.3d at 871 (quoting Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002)). And the court may not weigh “the controverting assertions of the party seeking dismissal.” MAG IAS Holdings, Inc. v. Schmuckle, 854 F.3d 894, 899 (6th Cir. 2017) (quoting Theunissen v. Matthews, 935 F.2d at 1459).

B. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of actions that fail to state a claim upon which relief can be granted. While Rule 8(a)(2) requires a pleading to contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” in order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (clarifying plausibility standard articulated in Twombly). Further, “[a]lthough for purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 678 (quoting Twombly, 550 U.S. at 555) (internal quotations omitted).

III. DISCUSSION

Ancestry asserts five grounds upon which the Court should dismiss Wilson's Complaint: (1) the Court lacks personal jurisdiction over Ancestry, (2) Wilson lacks Article III standing, (3) Wilson cannot state a plausible claim under Ohio's right of publicity statute or under Ohio common law, (4) section 230 of the Communications Decency Act forecloses Wilson's claims, and (5) the

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Copyright Act preempts Wilson's claims. (Mot. to Dismiss, ECF No. 13, p. 2.) The Court addresses each ground in turn.

A. Personal jurisdiction over Ancestry

Wilson argues that Ancestry's contacts with Ohio giving rise to this action establish specific personal jurisdiction; the Court agrees. (Pl. Opp'n, ECF No. 29, pp. 3-6.)

For the court to exercise specific jurisdiction over the defendant, “[t]he plaintiff's claims ‘must arise out of or relate to the defendant's contacts with the forum.” Ford Motor Co. v. Mont. Eighth Judicial Dist. Court, 141 S.Ct. 1017, 1025 (2021) (quoting Bristol-Myers Squibb Co. v. Superior Ct. of Cal., San Francisco Cty., 137 S.Ct. 1773, 1780 (2017)). Further, “[a] federal court sitting in diversity may not exercise jurisdiction over a defendant unless courts of the forum state would be authorized to do so by state law-and any such exercise of jurisdiction must be compatible with the due process requirements of the United States Constitution.” Int'l Techs. Consultants, Inc. v. Euroglas S.A., 107 F.3d 386, 391 (6th Cir. 1997) (citation omitted). “Under Ohio law, personal jurisdiction over non-resident defendants is available only if (1) the long-arm statute confers jurisdiction and (2) jurisdiction is proper under the Federal Due Process Clause.”^[2]Conn v. Zakharov, 667 F.3d 705, 712 (6th Cir. 2012) (citing Kauffman Racing Equip., L.L.C. v. Roberts, 930 N.E.2d 784, 790 (2010); Goldstein v. Christiansen, 638 N.E.2d 541, 543 (1994)).

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a. Ohio's long-arm statute^[3]

Under Ohio's long-arm statute, a court may exercise specific personal jurisdiction over a cause of action “arising from” the defendant “[c]ausing tortious injury by an act or omission in this state ....” Ohio Rev. Code § 2307.382(A)(3); Ohio Civ. R. 4.3(A)(3); Estate of Poole v. Grosser, 731 N.E.2d 226, 229 (1999) (noting that the court must determine whether “Ohio's long-arm statute, R.C. 2307.382, and the complementary civil rule, Civ. R. 4.3, confer jurisdiction”). Likewise, Ohio's Civil Rule 4.3 provides for service of process on a nonresident defendant under the same circumstances. Ohio Civ. R. 4.3(A)(3) (permitting service based on the defendant “[c]ausing tortious injury by an act or omission in this state....”). In other words, “a court may exercise personal jurisdiction over a party who causes tortious injury by an act or omission in Ohio.” M.W. v. D.M., 2018-Ohio-392, ¶ 14 (Ct. App.).

The Court may properly exercise personal jurisdiction over Ancestry under Ohio's long-arm statute. At the outset, the Court notes that an invasion of privacy is unambiguously a tort. See James v. Bob Ross Buick, Inc., 855 N.E.2d 119, 122 (Ohio Ct. App. 2006) (“Ohio has adopted the tort of misappropriation of the name or likeness of another as propounded by the Restatement.”) (Emphasis added) (citing Zacchini v. Scripps-Howard Broadcasting Co., 351 N.E.2d 454 (Ohio 1976)); Bosley v. WildWetT.com, 310 F.Supp.2d 914, 919 (N.D. Ohio 2004) (“At common law, invasion of the right to privacy is a tort.”) (Emphasis added).

Wilson's Complaint alleges that Ancestry...